New Iowa “Scope of Liability”/ Proximate Cause Jury Instructions!

As most practicing Iowa lawyers should know, the Iowa Supreme Court did away with the old doctrine of Proximate Cause last year (with some clarification in the Royal Indemnity case earlier this month) and replacing it with “Scope of Liability.”

The big headache for judges and trial lawyers is what the new jury instructions will look like.

Well, you’re in luck. I’m on the Iowa Jury Instructions Committee, and we approved two new jury instructions to replace the old proximate cause instruction – one on “factual cause” (ie did defendant’s conduct cause plaintiff’s damages) and another one on “scope of liability” (to be used only in rare cases – this is usually a question for the court)

Both instructions, after the jump.

4 ways Pawn Stars is like Personal Injury Law

Haven’t seen the show Pawn Stars yet? Time to jump on that bandwagon. It’s on the History Channel, and if you’re like me, you’re not so inclined to watch the higher channels on the cable lineup unless Flavor Flav is involved.

Watch the show

You’re missing out.

For those who haven’t seen the show, here are the basics. It follows the day to day operations of a Las Vegas pawn shop and the family who owns it (Old Man, Rick and Corey, along with Corey’s delightfully walrus-like sidekick, Chumlee). People bring in objects to pawn or sell, there is some discussion of the object and its value, and the pawn shop makes a deal (or not). Naturally the objects brought into the pawn shop are more exciting and historically significant than what I’d imagine pawn shops usually deal with (offbrand guitars, xboxes, old CDs, DVD players, etc). The real fun comes with the discussion about the historical background of the objects themselves, as well as the negotiation.

So it dawned on me. I like Pawn Stars because it reminds me of taking in personal injury cases. How? Let me count the ways:

1. To take a case or buy an item – similar calculations.

On Pawn Stars, when someone tries to sell an item, the Pawn Stars have to decide whether they will make any money from it. Seems easy, right? It’s not that simple. They have to analyze what the chances of resale are, how long an item would sit on the shelf, how much money would be put into restoration, etc to get it ready to sell (particularly true with antiques, cars and guns) and how much profit they would make. Based on this calculus (done in a split second) they decide whether to buy or sell an item.

As personal injury attorneys, we share the same considerations in deciding whether or not to take a case. Will I win? How long will it take? How much is the case worth? How much risk is there? How much will we have to invest in costs (experts, exhibits) before the case can be settled or taken to trial? We also make this internal calculation based on a phone call or two and an in-person meeting with a potential client. Sometimes we make good decisions, sometimes not.

2. We both have to watch out for red flags.

One episode showed a guy trying to sell 5 or 6 identical, mint condition Pete Rose cards. This set off red flags for the PS crew – why did he have so many? Why were they all in identical condition? Why were all of them in perfect condition? Why did he want to sell them? After a closer inspection, the cards turned out to be forgeries. We don’t know if the would-be-seller was the forger or a victim of someone else’s forgery, but it was a good catch that saved Rick some money.

In my field, I believe the vast majority of people I talk to are good people who need help. There are always a few who want to fudge the truth to get what they want. If someone’s story doesn’t make sense, or if their story is completely different each time you talk to them, beware of the counterfeit case. I’ve taken cases in, ordered the medical records, and then found out my client’s story is completely different than what actually happened. We get rid of those clients – but we have to keep a look out for them.

3. People often have an exaggerated idea what their stuff (or their case) is worth.

One feature of Pawn Stars has a quick interview snippet with a prospective seller where they say what they want to get for an object – usually something like “I have no idea what this antique coin is worth, but I’m looking to get between $2,000 and $3,000 for it today.” If you have no idea what it’s worth, where did you come up with your numbers? Is that just the amount you needed to get out of debt/pay your mortgage/buy what you really wanted? Likewise, people on the show typically overlook flaws in their items and see them with rose colored glasses.

Once again, this is no different in the law. Clients tend to overlook flaws in their cases (yet plaintiff’s attorneys should be mindful in how they discuss the flaws with their clients – focus on them too much or too strongly and the client may think you don’t believe in their case, ignore them too much and you gloss over some needed truth). Clients also have some idea what their case is worth, and sometimes it’s way, way off. The key is explaining how you get your range as to the value of the case.

4. In over your head? Call in an expert!

Several times an episode, Rick will call “a buddy of his” to evaluate an interesting piece – sometimes for authenticity, sometimes for value.

We do this all the time. We have expert witnesses in cases because we can’t possibly know everything. We use them in medical malpractice because we’re not doctors or nurses and don’t pretend to be. We use them in other cases where particular expertise is needed. We talk to other lawyers about technique, settlement value, etc. Other lawyers come to us with specific or general questions. The process is collaborative, and a lawyer who goes along totally on his or her own may get in trouble.

So there you go. Watch Pawn Stars and become a better lawyer – but remember you heard it from me first.

(Howard Zimmerle is a personal injury and accident lawyer with offices in Rock Island, Illinois and Davenport, Iowa.)